The Secret Affair of Senator Kirsten Gillibrand and Philip Morris

The best-kept secret in the halls of Congress -- until today -- may have been the extent to which New York's new senator, Kirsten Gillibrand, helped cigarette maker Philip Morris during her former employment as an attorney with the global law firm Davis, Polk & Wardwell. Information about her relationship with the cigarette maker wasn't included in her official biography or her campaign materials, but on Friday, March 27, 2009, the New York Times published an article describing in detail how Gillibrand, under her maiden name Kirsten Rutnik, was involved at high levels in the legal affairs of Philip Morris.

In 1998, as an attorney at Davis Polk, Gillibrand served on Philip Morris' Privilege and Crime Fraud Committee, an elite group of attorneys from both inside and outside Philip Morris. Some of Gillibrand's colleagues on the Committee were full partners in their respective law firms, which reveals the respect she earned in her service to the company.

Purpose of the Crime Fraud Committee

In the 1990s, tobacco companies faced mounting accusations that the industry had been misusing attorney-client privilege to shield damaging research and sensitive documents from plaintiffs in court cases. These challenges reached their height in 1997 in Minnesota's lawsuit against the tobacco industry. Lawyers for Minnesota charged the companies with using lawyers to unjustly shield sensitive documents, saying they were thus committing fraud, and thus privilege did not apply. A Minnesota judge agreed, saying that Philip Morris had engaged in an “egregious attempt to hide information.” The tobacco company fought all the way to the Supreme Court to keep their documents hidden, but, in a major blow to the industry, the Court forced the release of 39,000 pages of damaging documents that showed the industry was aware of the addictive nature of nicotine, that they had experimented with varying dose levels, and more.

In June, 1997, the U.S. House Committee on Government Reform and Oversight filed a Minority Staff Report charging attorneys from the major U.S. tobacco companies with misusing attorney-client privilege to shield key documents about the health implications of their products, and saying that the companies thus had advanced corporate crime or fraud.

It was amid this climate that PM formed its Privilege and Crime-Fraud Committee. The committee's job was to scrutinize documents to determine if they had been improperly shielded under attorney-client privilege, but in essence, the committee was charged with keeping plaintiffs or the government from seeing sensitive documents that Philip Morris wanted to keep secret.

Senator Gillibrand was also involved with legal matters at PM's overseas lab in Cologne, Germany, Institut Fur Biologische Forschung, (or Institute for Biological Research, known inside PM as INBIFO). At this laboratory PM studied topics such as the health effects of inhaling secondhand smoke, and the role of tobacco in forming cancerous tumors. Performing such sensitive research in a foreign country allowed PM to keep the results beyond the reach of the United States government, news media and plaintiffs’ lawyers.

A former colleague of Gillibrand's at Davis Polk, Vincent Chang, told the Times that Davis, Polk lawyers were permitted to decline to work on the tobacco cases if they had a moral or ethical objection to the work. However, Ms. Gillibrand did not decline to work for PM, a company whose products contribute to the untimely deaths of over 400,000 Americans annually, and millions more worldwide. Instead, she represented the tobacco company with skill and zeal enough to make her a highly respected member of PM's legal team.

Sometimes it isn't what is include in a person's official resume' that's important. It's what isn't.